Border Asylum Judges Deny Most Petitions

A new analysis of the decisions of U.S. immigration court judges finds that at least two of the five immigration judges in El Paso have a far higher denial rate than the national average. What accounts for the disparity is a matter of debate.

The Mexican journalist Emilio Gutiérrez has sought political asylum in the United States since June 2008, when he and his teenage son fled the small town of Ascensión, Chihuahua, in the pre-dawn hours and arrived at the Antelope Wells, N.M., border crossing.

Threatened by the Mexican military for his reporting on its alleged human rights abuses, Gutiérrez says returning to his native land is a certain death sentence. Whether an asylum judge will agree, however, is far less clear.

A new analysis of the decisions of United States immigration court judges finds that at least two of the five immigration judges in El Paso, where Gutiérrez’s case is being considered, have a far higher denial rate than the national average. The report, by the Transactional Records Access Clearinghouse, a nonpartisan center based at Syracuse University that tracks the enforcement activities of the federal government, analyzed the decisions of 265 immigration judges across the country who have ruled in at least 100 political asylum cases in the last five years. On average, over that period, immigration judges rejected 53.2 percent of asylum applications.

But William L. Abbott and Thomas C. Roepke, both judges in El Paso, had a combined rejection rate of 83.3 percent in 346 cases — most from Mexico and Central America — decided between 2006 and July 2011. Roepke denied asylum requests in 96.7 percent of his cases — the third-highest rejection rate among the judges included in the Syracuse report.

The denial rate for Gutiérrez’s judge, Robert Hough, was not determined because he has decided less than 100 cases. Earlier this year, Gutiérrez’s case was postponed until May 2012. The long delay is indicative of another problem highlighted in the Syracuse study: the system is overwhelmed, resulting in a significant backlog of cases.

“It’s not an intentional delay — it’s a bureaucratic mess,” said Carlos Spector, Gutiérrez’s El Paso attorney. “The system mitigates against the delivery of justice because these asylum cases are complicated.”

Spector estimates he will need at least 20 hours before the judge to present witnesses on behalf of Gutiérrez. He has also filed a petition with the Inter-American Commission on Human Rights, alleging the Mexican government falls short in its ability to protect its citizens from the military.

To win political asylum, foreign nationals must prove to a judge that they have been persecuted in the past, or have a well-founded fear of persecution in the future based on five specific statutory grounds: race, religion, nationality, political opinion or membership in a particular social group. Almost 33,000 people applied for defensive political asylum in the United States in fiscal year 2010, according to the Executive Office of Immigration Review. Nationally 9869 were granted and 9554 were denied.

Gutiérrez was detained for seven months because he lacked permission to enter the United States, Gutiérrez but he is now living in a location he prefers not to disclose for security reasons (his son was detained for two months before being released).

Why there are such stark differences among immigration judges is unclear. The Syracuse study has tracked political asylum decisions since 1994 and has called the disparities “disturbing” noting that “the unusual persistence of these disparities — no matter how the asylum cases are examined — indicates that the identity of the judge who handles a particular matter often is more important than the underlying facts.”

The Executive Office for Immigration Review, which is part of the United States Department of Justice, oversees one part of the political asylum process and appoints the immigration judges. Officials there did not respond to a request for comment on the Syracuse study or on Gutiérrez’s case.

Spector, who for more than 20 years has represented asylum seekers, believes that those from Mexico face a higher threshold because the United States has a significant financial and political interest in supporting the Mexican government in its struggle with narco-traffickers and drug cartels.

“There is a political predisposition by the judges to deny Mexican asylum claims for political and policy reasons,” Spector said. And because immigration judges “have been government employees for so long, they get the memo,” he said, adding that immigration judges are often recruited from the ranks of prosecutors or law enforcement.

Dana Leigh Marks, an immigration judge in California and the president of the National Association of Immigration Judges, says it is not so simple, although she does agree that foreign policy interests are a factor in political asylum decisions.

“Immigration judges are required to consult and incorporate in their decisions the official country report published by the United States Department of State in any asylum case,” she said. “Obviously our foreign-relations position with regard to a country from which the asylum seeker comes is an important factor in the judge’s decision.”

The State Department’s 2010 country report on Mexico catalogs a long list of human rights abuses, in addition to the widespread violence caused by the cartels and the drug trade generally: “unlawful killings by security forces; kidnappings; physical abuse; poor and overcrowded prison conditions; arbitrary arrests and detention; corruption, inefficiency, and lack of transparency that engendered impunity within the judicial system; confessions coerced through torture; violence and threats against journalists leading to self-censorship.”

Because Gutiérrez, who wrote for an affiliate of El Diario de Juárez, was documenting crimes allegedly committed by Mexican military personnel and there is no evidence they have been brought to justice, he and Spector argue that he meets the criteria for political asylum.

Jacqueline L. Watson, an immigration attorney in Austin, says it is always a gamble to think a case is solid enough to convince a judge. She says it is difficult to convince judges that there is an imminent threat to life or liberty.

“Unfortunately it’s almost like they left too soon,” she said. “It is as if one can say, ‘Oh yeah, congratulations you saved your life but you didn’t stick around long enough to almost be killed and live to tell about it.’”

One potential bright spot for Gutiérrez is that he has legal representation. According to the Syracuse analysis, almost 90 percent of those seeking political asylum who were not represented by an attorney were denied.

As he waits, Gutiérrez remains optimistic he will be given asylum. He also scoffs at analysts who say the security situation in Mexico is exaggerated, or even improving.

“Tell them to go live in Juárez to see if it’s getting better,” he said. “They need to live there.”

An earlier version of this article mis-stated the amount of applicants that filed for asylum with the Executive Office of Immigration Review in 2010. It is about 33,000, not about 19,500. The 19,500 figure reflects the estimated total of how many cases were granted or denied.

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